Florida Immigration Lawyer Blog

ICE can remove you from the U.S. before you ever see an Immigration Judge.

Published on: June 16, 2014 | by Lasnetski Gihon Law

The American Immigration Lawyer’s Association (AILA) recently posted an article on what they referred to as “No-Process Removals.” Click here to read the article.

A “no-process” removal is one where an alien receives an order of removal (deportation) not from an Immigration Judge, but rather, from an Immigration Officer who works for the U.S. Immigration and Customs Enforcement (ICE).

These methods of removal can take many forms, including, but not limited to, expedited removal under INA § 235(1)(b); reinstatement of removal under INA § 241(a)(5); administrative removal under INA § 238(b); and visa waiver removal under INA § 217(b). When ICE decides to remove an alien through one of these methods, there is no neutral party (Immigration Judge) to review the evidence and determine if ICE has carried its burden to establish that the alien is removable from the United States by clear and convincing evidence. In addition, an alien’s family ties, work and educational history, ties to the community, hardship to the alien’s family if they are removed, and other positive discretionary factors are irrelevant.

Three BIA Cases Come Out on Adam Walsh Act

Published on: June 5, 2014 | by Lasnetski Gihon Law

The BIA recently released three separate decisions relating to the Adam Walsh Act. The Adam Walsh Act prevents certain United States citizens from petitioning to obtain a green card for their family members. Specifically, Section 402(a)(2) of the Act bars a United States citizen who has been convicted of certain acts against minors from having family based petitions approve unless it is determined that the US citizen petitioner poses no risk to the beneficiary.

In Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014), the BIA determined that the standard of proof to be applied to these cases is within the discretion of the Department of Homeland Security (DHS), which delegated the authority to USCIS. USCIS has applied a beyond a reasonable doubt standard of proof, which is an extremely high standard. The BIA determined that it has no jurisdiction to review the standard used by USCIS. Furthermore, the BIA held that it had no jurisdiction to review whether the Petitioner proved beyond a reasonable doubt that he or she posed no risk to the beneficiary.

In Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014), the BIA held that the categorical approach does not apply to a determination of the age of the victim and the conduct underlying the offense. This means that USCIS can look past the statute of conviction and determine whether the underlying facts establish that the victim was a minor and whether the offense was a “specified offense against a minor.”

Stay of Deportation or Removal: A Last Line of Defense

Published on: May 14, 2014 | by Lasnetski Gihon Law

Many people believe that when an immigrant is ordered removed from the United States by an immigration judge, that they are immediately removed. The truth is that the United States doesn’t have the resources to physically remove the countless non-citizens who have been ordered removed. There is one arrow left in the quiver of many non-citizens that may enable them to stay and even obtain employment authorization for a finite period of time. It is call a Stay of Deportation or Removal.

A Stay of Deportation or Removal is humanitarian grant by the Department of Homeland Security, Immigration and Customs Enforcement (DHS/ICE). It is basically their agreement to hold off on effecting the removal order for a period of time, to be determined by them.

A non-citizen who has been ordered removed by an immigration judge can request a stay of removal by submitting Form I-246, Application for a Stay of Deportation or Removal to the local Enforcement and Removal Operations (ERO) office. The application must be supported by ample documentary evidence supporting the reasons for the request.

Lasnetski Gihon Law Adds Former Immigration Prosecutor to the Firm

Published on: May 5, 2014 | by Lasnetski Gihon Law

Lasnetski Gihon Law is pleased to announce the upcoming addition of John Gihon to the firm. The newly named Law Offices of Lasnetski Gihon Law will open an office in Orlando to further serve clients in the southern Georgia, northeast Florida, and central Florida locations in all matters related to criminal, immigration and personal injury.

John is currently employed as an immigration prosecutor under the Department of Homeland Security. His duties include representing the government in deportation cases and instructing other lawyers, ICE agents, USCIS officers and other government officials on immigration law. We are excited to add his immigration experience and knowledge to our team at Lasnetski Gihon Law.

John is also a former prosecutor at the State Attorney’s Office in Jacksonville. As a criminal trial attorney, he tried many criminal cases, including homicides. His unique experience in both criminal and immigration law is a perfect fit for our firm.

Asylum Re-Adjustment Not Allowed Says The BIA

Published on: April 29, 2014 | by Lasnetski Gihon Law

In Matter of C-J-H, 26 I&N Dec. 284 (BIA 2014), the Board of Immigration Appeals held that a person who adjusted their status to that of a lawful permanent resident after having been granted asylum cannot readjust their status to avoid removal consequences of criminal convictions.

This decision is a blow to any asylee who adjusted their status pursuant to INA 209(b), (which authorizes adjustment of status of asylees to lawful permanent residents) and who has since been convicted of a crime that makes the person removable. Matter of C-J-H prevents that person from readjusting their status, in conjunction with a waiver of inadmissibility under INA section 209(c).

The BIA reasoned that once a person becomes a lawful permanent resident pursuant to adjustment of status under section 209(b), that person no longer holds the status of an asylee, and therefore cannot adjust status as an asylee under section 209(b). The BIA stated that although section 209(a), which deals with “refugees,” specifically precludes a refugee from readjusting once they have already adjusted, and there is no similar language under section 209(b), which deals with “asylees,” the plain language of the statute and legislative history dictate that if a refugee can’t readjust, then neither can an asylee.

30 Day Deadline to Appeal Removal Orders

Published on: April 28, 2014 | by Lasnetski Gihon Law

In the event that an Immigration Judge finds a person removable from the United States and denies that person any form of relief, there is a 30 day deadline to appeal to the Board of Immigration Appeals. This is an extremely important deadline. Many potential clients have come to my office years later asking to take their case when they have let that deadline come and go. Appeals are a natural and important part of any immigration case that is denied by an immigration judge. There may be novel or undeveloped issues of law that are ripe for review. There may be issues of fact that can be viewed in a different light by the BIA. The immigration judge may have made a legal or factual error. It is important to have an immigration lawyer review your case well within the 30 day appeal period to determine whether you may have a viable appeal.

During the course of the appeal to the BIA, the person will not be deported. If the BIA denies the appeal, the person can appeal the BIA’s decision to the federal circuit court by filing a Petition for Review. Unfortunately, there is no automatic right to stay the removal during the appeal to the circuit court and stays are rarely granted pending the appeal.

An appeal is a very important and often productive weapon in the arsenal of an immigration lawyer or any person facing removal. You can obtain more information about the Board of Immigration Appeals here at their website.

Attempted Possession of A Stolen Vehicle Not Categorically an Aggravated Felony in the Ninth Circuit

Published on: April 24, 2014 | by Lasnetski Gihon Law

The Board of Immigration Appeals (BIA) recently held, in Matter of Sierra, 26 I&N 288 (BIA 2014), that a conviction for attempted possession of a stolen vehicle in violation of Nevada law is not categorically an aggravated felony, under INA Section 101(a)(43)(G) and (U), as an attempted theft offense. The BIA reasoned that the statute requires the minimal mental state of “reason to believe” that the property was stolen. Therefore, under Nevada law, a person can be convicted even if they did not know the vehicle was stolen. They can be convicted simply if they had reason to believe it was stolen, but no actual knowledge.

There are two limitations to this decision.

First, the BIA is bound by precedent decisions in the Ninth Circuit and therefore the result can be different in different circuits where those courts have rendered conflicting decisions. Therefore, this holding does not necessarily apply to immigration cases arising out of different circuits.

Know Before You Go: Affidavit of Support Issues

Published on: January 29, 2014 | by Lasnetski Gihon Law

For most green card based petitions, the Petitioner (i.e. U.S. citizen or U.S. employer) must file an Affidavit of Support as a sponsor to the beneficiary (intending immigrant). The Affidavit of Support is a contract between the sponsor and federal government and is enforceable. Should the intending immigrant become a Public Charge (i.e. receive public assistance, including food stamps, Medicaid, etc.), then the government can come after the sponsor to reimburse it for those expenditures. The Sponsor has a contractual obligation to maintain the beneficiary at a certain percentage above the Federal Poverty line (usually 125% above the poverty line; 100% the poverty line for active duty military).

The Affidavit of Support process has three steps. First, the sponsor must demonstrate that he or she has sufficient household income. Second, the sponsor can use certain assets belonging to the sponsor, the beneficiary, or other household members to reach the required poverty line. Third, the sponsor may secure a joint sponsor to help reach the required poverty line.

USCIS will use the Affidavit of Support and accompanying evidence to determine whether they believe the beneficiary will become a Public Charge. USCIS will consider many factors including current job status, earning from current and past employment, and current use of welfare benefits by the sponsor or the sponsor’s family members. An Affidavit of Support can be rejected even if it establishes an income over the required poverty line if USCIS believes the person will not be able to maintain the income.

Canadian Citizen Justin Bieber Arrested: Immigration Consequences?

Published on: January 22, 2014 | by Lasnetski Gihon Law

Canadian citizen Justin Bieber was arrested early this morning for Driving Under the Influence, Driving with No Valid Driver’s License and Resisting Arrest. Not only will he face possible criminal sanctions, including the possibility of a jail sentence, he could also incur some negative immigration consequences.

Driving with No Valid Driver’s License is not by itself a deportable offense or an offense that would make him inadmissible upon reentry. However, in conjunction with a DUI conviction, the immigration consequences become somewhat more grey.

The Board of Immigration Appeals has been inconsistent on its stance on whether, and when, a DUI is a crime involving moral turpitude. A simple DUI with no aggravators is not a crime involving moral turpitude. Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001). However, a DUI with some attached aggravator may be considered a crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999). For example, a DUI with an element of knowledge, like driving with a suspended license or driving with no license, can be enough for the conviction to be deemed a crime involving moral turpitude.

Know Before You Go: Issues for Family Based Marriage Cases

Published on: January 22, 2014 | by Lasnetski Gihon Law

Complex issues can arise for a couple who are citizens of different countries, but want to stay together. Non-Immigrant visas are temporary. A non U.S. citizen who wants to visit their U.S. citizen significant other may run into problems at the embassy because the government may believe that his or her true intent is to come to the United States permanently despite applying for a temporary visitor visa, or some other non immigrant visa. Couples often find themselves having to make a long lasting decision before they may otherwise be ready: Do we get married now so we can file for a green card and start our lives together, or do we wait and risk a long term separation and filing through an embassy.

If the couple decides to get married and subsequently files for a green card, USCIS will conduct a thorough review to determine whether the marriage is “bona fide.” That is, is the marriage valid and viable. It is unlawful to file for any immigration benefit based on a marriage that was entered into for the sole purpose of obtaining the immigration benefit. That being said, it is not unlawful to get married sooner than you would otherwise wish to do so you can obtain an immigration benefit (i.e. a green card), as long as the marriage is bona fide. The couple must intend to live permanently as a couple.

If a non U.S. citizen gets married to a U.S. citizen within 2 years of filing for an immigration benefit (i.e. green card), USCIS will scrutinize the relationship to ensure that it is not fraudulent. They will make sure that money has not been exchanged for the filing of the immigration benefit. They may interview each applicant separately to determine whether they are telling the truth. They may conduct an investigation to corroborate or dispute the statements made in the filing or at the interview. For example, they may go talk to neighbors to determine whether both individuals live at the residence together and act like a couple in love.